Citation Nr: 9815891
Decision Date: 05/22/98 Archive Date: 06/03/98
DOCKET NO. 96-47 391 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence had been received to reopen
a claim for entitlement to service connection for a nervous
disorder to include post traumatic stress disorder.
REPRESENTATION
Appellant represented by: American Legion
ATTORNEY FOR THE BOARD
C. L. Krasinski, Associate Counsel
INTRODUCTION
The veteran served in active duty from October 1970 to June
1972.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA), St. Petersburg, Florida, Regional
Office (RO).
The Board notes that in a July 1996 statement, the veteran
appears to be filing a claim for entitlement to an increased
evaluation for a low back disability and an application to
reopen the claim for entitlement to service connection for
hypertension. This matter is referred to the RO for
appropriate action.
The Board further notes that in December 1979, the RO denied
the veteran’s claim for entitlement to service connection for
a mental condition. The veteran was notified by letter, in
December 1979, that service connection for a mental condition
had been denied. The December 1979 rating decision is final,
as there was no timely appeal of the decision. See 38
U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105
(1997). In January 1994, the RO denied the veteran’s
application to reopen the claim for entitlement to service
connection for a nervous disorder. The veteran was notified
of this decision in January 1994 and he filed a timely notice
of disagreement and substantive appeal. In August 1994, the
veteran indicated that he wanted to include post traumatic
stress disorder with his claim for entitlement to service
connection for a nervous disorder. In June 1996, the RO
denied entitlement to service connection for post traumatic
stress disorder. The veteran filed a timely notice of
disagreement and substantive appeal with respect to this
issue.
The Board finds that the claim for entitlement to service
connection for post traumatic stress disorder to be the same
claim as entitlement to service connection for a nervous
disorder. The United States Court of Appeals, Federal
Circuit, reviewing a decision of The United States Court of
Veterans Appeals (Court), has held that a newly diagnosed
disorder, whether or not medically related to a previously
diagnosed disorder, can not be the same claim when it has not
been previously considered. Ephraim v. Brown, 82 F. 3d 399,
401 (Fed. Cir. 1996) (Service connection for depressive
neurosis versus newly diagnosed post-traumatic stress
disorder). It was further held that a claim based on the
diagnosis of a new disorder, taken alone or in combination
with a prior diagnosis of a related disorder, states a new
claim, for the purpose of the jurisdictional requirement,
when the new disorder had not previously been diagnosed and
considered. Ephraim, at 402.
However, in the present case, the veteran has not submitted
evidence showing a newly diagnosed disorder. He has not
submitted medical evidence reflecting a diagnosis of post
traumatic stress disorder. Therefore, the RO's denial of
service connection for post traumatic stress disorder was
part and parcel of the nervous disorder claim because the
veteran’s application and the RO's disposition involved the
same disorders.
REMAND
Review of the record reveals that, in an August 1994 VA Form
1-9, the veteran requested a hearing before the Board at a
local VA office. In a November 1994 VA Form 1-9, the veteran
indicated that he did not want to appear for a hearing before
a member of the Board. In an August 1996 VA Form 1-9, the
veteran requested a hearing before the Board at a local VA
office. He noted, in handwriting, that he would request a
personal hearing under separate cover. In an August 1996
statement, the veteran requested a personal hearing. The RO
scheduled the veteran for a personal hearing before the RO in
March 1997; however, the veteran failed to report. Review of
the record reveals that the veteran was not afforded the
opportunity of a hearing before a member of the Board.
It is a basic principle of veterans' law that the Board shall
decide an appeal only after affording the claimant an
opportunity for a hearing. 38 U.S.C.A. § 7104 (West 1991 and
Supp. 1997). Pursuant to 38 C.F.R. § 20.700 (1997), a
hearing on appeal before the Board will be granted if a
veteran expresses a desire to appear in person. There is no
indication in the record that the veteran was afforded a
hearing before a member of the Board or that the veteran
withdrew his request for such a hearing subsequent to his
August 1996 VA Form 1-9. In light of these circumstances,
the Board concludes that clarification regarding whether the
veteran desires a hearing before the Board is needed. The RO
should contact and ask the veteran whether he desires a
hearing before a member of the Board before a final decision
on his appeal is made.
Review of the record reveals that in March 1996, the veteran
filed an application to reopen the claim for entitlement to
service connection for headaches. In May 1996, the RO denied
the application to reopen. In July 1996, the veteran filed a
notice of disagreement for this issue. It does not appear
that the RO issued a statement of the case with respect to
this matter. Thus, the Board finds that this matter should
be remanded.
Accordingly, the case is REMANDED to the RO for the
following:
1. The veteran should be scheduled to
appear at a hearing before a Member of
the Board at the RO as soon as it may be
feasible. The appellant should be asked
to submit any other information,
evidence, or arguments that may be
pertinent to this appeal at that time.
2. The RO should issue a statement of
the case regarding the application to
reopen the claim of service connection
for headaches, which includes the
appropriate law and regulations and
adequate reasons and bases for the RO's
decision. The veteran and his
representative, thereafter, should be
afforded an opportunity to respond.
The case should then be returned to the Board for further
appellate consideration, if appropriate. No action is
required of the veteran until he is notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 1991) (Historical and Statutory Notes). In
addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the RO’s to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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